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Finding the Best Path Forward to Protect the Open Internet

I am a strong believer in the importance of an Open Internet. As President Obama has explained, “Preserving an Open Internet is vital not just to the free flow of information, but also to promoting innovation and economic productivity.” That is why I have made preservation of the Open Internet a priority for the FCC.

Some recent commentary has had a misinformed interpretation of the Open Internet Notice of Proposed Rulemaking (NPRM) currently before the Commission. There are two things that are important to understand. First, this is not a final decision by the Commission but rather a formal request for input on a proposal as well as a set of related questions. Second, as the Notice makes clear, all options for protecting and promoting an Open Internet are on the table.

I believe this process will put us on track to have tough, enforceable Open Internet rules on the books in an expeditious manner, ending a decade of uncertainty and litigation.

The idea of net neutrality (or the Open Internet) has been discussed for a decade with no lasting results. Today Internet Openness is being decided on an ad hoc basis by big companies. Further delay will only exacerbate this problem. The NPRM is seeking input on the best way to protect and promote the Open Internet.

In its Verizon v. FCC decision the D.C. Circuit laid out a blueprint for how the FCC could use Section 706 of the Telecommunications Act of 1996 to create Open Internet rules that would stick. I have repeatedly stated that I viewed the court’s ruling as an invitation that I intended to accept. We ask for comment on this approach in the NPRM.

I am concerned that acting in a manner that ignores the Verizon court’s guidance, or opening an entirely new approach, invites delay that could tack on multiple more years before there are Open Internet rules in place. We are asking for comment on a proposed a course of action that could result in an enforceable rule rather than continuing the debate over our legal authority that has so far produced nothing of permanence for the Internet.

I do not believe we should leave the market unprotected for multiple more years while lawyers for the biggest corporate players tie the FCC’s protections up in court. Notwithstanding this, all regulatory options remain on the table. If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won’t hesitate to use Title II. However, unlike with Title II, we can use the court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay.

At the heart of the proposed NPRM is the assurance that it won’t be possible for an Internet provider to degrade the service available to all. Let me re-emphasize that: the Internet will remain like it is today, an open pathway. If a broadband provider (ISP) acts in a manner that keeps users from effectively taking advantage of that pathway then it should be a violation of the Open Internet rules.

There has been a great deal of discussion about how our proposal to follow the court’s roadmap will result in a so-called “fast lane” and Internet “haves” and “have-nots.” This misses the point. The proposed rule is built to ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the content, services and applications they demand, as well as an Internet that offers innovators and edge providers the ability to offer new products and services.

The focus of this proposal is on maintaining a broadly available, fast and robust Internet as a platform for economic growth, innovation, competition, free expression, and broadband investment and deployment. Our goal is rules that will encourage broadband providers to continually upgrade service to all. We will follow the court’s blueprint, and I must warn you, we will look skeptically on special exceptions. The NPRM proposes such a policy, along with other important protections and reforms. The NPRM also proposes that the best way to accomplish this is by exercising the FCC’s authority as delineated by the D.C. Circuit under the “commercially reasonable” standard that the Commission has already implemented (and the court approved) in the Data Roaming Order.

Let me be clear, however, as to what I believe is not “commercially reasonable” on the Internet:

Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down.

Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.

Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.

Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.

In other words, the Internet will remain an open pathway. If broadband providers would seek to use the commercially reasonable test as justification of activities in which users can’t effectively use that pathway, or the capabilities of it are degraded, I suggest they save their breath since such conduct would be a violation of the Open Internet rules we propose. If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it.

Using every power also includes using Title II if necessary. If we get to a situation where arrival of the “next Google” or the “next Amazon” is being delayed or deterred, we will act as necessary using the full panoply of our authority. Just because I believe strongly that following the court’s roadmap will enable us to have rules protecting an Open Internet more quickly, does not mean I will hesitate to use Title II if warranted.

There is an oft-overlooked and currently enforceable survivor from the 2010 Open Internet Order – the transparency rule. The court affirmed the requirement that ISPs provide information to consumers and edge providers about their service. The proposed NPRM expands that transparency requirement to include specific disclosures that will give edge providers, large and small, the information they need to do their business – including information that would “rat out” bad practices by ISPs. We will demand that ISPs exercise the same care with regard to these disclosures that they do with their filings at the Securities and Exchange Commission. Penalties for the failure to fully disclose and/or perform consistently will be serious.

Even with an Open Internet there remains a shortfall in adequate broadband competition. I indicated in February my intention to address the matter of municipal ownership or sponsorship of competitive broadband networks. While that is not a matter that is appropriate for an Open Internet NPRM, it is an issue that remains high on my agenda and we will be announcing more on this topic shortly.

The question of how networks exchange Internet traffic, such as through peering, was outside of the scope of our 2010 Open Internet Order and thus is outside of the proposed scope of the Open Internet NPRM. However, we will seek comment on this question, in order to hear from those who may disagree with this suggested treatment of peering/traffic exchange.

It is important to remember, however, that the manner in which networks interconnect to exchange Internet traffic is a part of what I call the Network Compact, those values that have traditionally governed successful networks. Thus, it is a question that must concern the Commission. Right now, through both written filings in the "remand" docket and through presentations made by networks and others to the Commission, we are receiving points of view on the manner in which current traffic exchange regimes are, or are not, working. We encourage such dialogue with networks, edge providers and end users. The bottom line is that interconnection has always been a key component of telecom policy.

In summary, the simple fact is that the court has provided a legal roadmap for how we can protect net neutrality and do so expeditiously. The recommendation on which we seek comment would result in timely and meaningful Open Internet rules. This NPRM means that consumers, startup innovators, venture capitalists, and others who have been waiting…and waiting…and waiting for the certainty of rules would finally have something on which they can rely. We have been talking about net neutrality for a decade; it is time to put something in place – and to do it with dispatch.